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State v. White

Court of Appeals of Oregon

March 6, 2019

STATE OF OREGON, Plaintiff-Respondent,
JARED KELLY WHITE, Defendant-Appellant.

          Argued and submitted November 5, 2018

          Multnomah County Circuit Court 16CR05211; Jerry B. Hodson, Judge.

          Mary M. Reese, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Greg Rios, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and James, Judge, and Haselton, Senior Judge.

         Case Summary:

         Defendant appeals a judgment ordering the payment of restitution to Child Abuse Response and Evaluation Services (CARES) Northwest. On appeal, defendant argues that the trial court erred in ordering restitution to CARES Northwest because CARES Northwest was neither a victim nor suffered economic damages under ORS 137.103. Held: The court erred in ordering restitution to CARES Northwest for the cost of the services CARES Northwest provided in a child abuse evaluation. Because no theory of civil liability would permit CARES Northwest, as a provider of medical services, to recover directly from defendant as a third-party tortfeasor, CARES Northwest did not, through their provision of services to the victim in this case, suffer "economic damages" and was not a "victim" for the purposes of the restitution statute.

         Supplemental judgment awarding restitution to CARES Northwest on Count1 reversed; otherwise affirmed.

         [296 Or.App. 446] JAMES, J.

         The primary issue in this case is whether Child Abuse Response and Evaluation Services (CARES) Northwest-a group formed by Kaiser Permanente, OHSU Doernbecher Children's Hospital, Providence Children's Health, and Randall Children's Hospital at Legacy Emanuel that pairs physicians and nurse practitioners with forensic child interviewers to provide child abuse evaluations in law enforcement investigations-was a victim for purposes of criminal restitution under ORS l37.lO3(4)(b), which defines "victim" as someone who "has suffered economic damages as a result of the defendant's criminal activities." Based on this record, we hold that CARES, as a provider of services in this case did not suffer economic damages by providing those services, and accordingly reverse the trial court's award of $1, 343.85 in restitution to CARES on Count 1. On the remaining assignments of error, each of which challenges the award of restitution to insurance providers, we affirm.

         The facts underlying this appeal are undisputed. Defendant pleaded guilty to two counts of first-degree sodomy; two counts of first-degree unlawful sexual penetration; and one count of first-degree sexual abuse, against three foster children who were in the care of defendant's grandparents. Defendant, at the time of the crimes, was between 15 and 18 years old. At some point, there was a disclosure by the children that resulted in a Department of Human Services (DHS) employee, Van Rees, referring the three children to CARES. The three children received medical evaluations at a CARES facility. Van Rees, who was at the time working as the "out of home care assessor," testified that DHS "typically will refer kids to CARES when we have * * * concerns of abuse or neglect." Van Rees testified that a referral to CARES under those circumstances was indicative of one of the "broader purposes" for DHS's use of CARES, as opposed to a referral to CARES being made only when DHS has a belief that there could be prosecution or police involvement. Another caseworker for two of the victims, Coomes, testified that CARES helps to "clarify what happened if something happened, a lot of times there's questions when an allegation is made, * * * they conduct interviews, they do the physical exam, and they make recommendations as to whether those [296 Or.App. 447] allegations are true or not. And then help [DHS] kind of drive where the case goes from there." Coomes then clarified that by "case" she meant that a criminal case is part of what she was referencing but also case management in terms of how to "help the children and the family cope after what's happened."

         The Medical Director of CARES averred that "CARES is a specialized child abuse medical clinic * * *." As he testified, when a child is seen for a medical evaluation, the standard of care consists of a medical exam of the child's body, and a recorded forensic interview. The exam and the forensic interview are provided to children at CARES

"without regard for ability to pay. When a child patient is insured, CARES will bill the insurer for the cost of the medical evaluation. While some insurers will cover the full cost of a medical evaluation, others will cover less than the full cost. When an insurer covers less than the full cost, CARES suffers an economic loss."

         CARES does not bill or request payment from the child patient's family if insurance will not cover the total costs. The Medical Director of CARES also averred that he believes that "the medical evaluation [of the child victims] resulted, in ...

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